June 16, 1977 

The Honorable Gene Russell 

County Attorney 

Burnet County 

Burnet, Texas 78611 

Opinion No. H-1016 

Re: Authority of sheriff 

to make arrests outside 

his county. 

Dear Mr. Russell: 

you have requested our opinion whether a sheriff may make 

an arrest outside of his county for an offense committed outside 

of his county if the offense is committed in his presence or 

within his view. 

The authority of a sheriff to make arrests for offenses committed outside of his county was examined in Henson v. State, 

49 S.W.Zd 463 (Tex.Crim.App. 1932). The court reviewed the pertinent statutes and authorities and summarized them as follows: 

The sheriff is a conservator of the 

peace -- in his county. . . . 

C.C.P. art. 41; presently C.C.P. art. 2.17. 

It is his duty to preserve the peace 

within his jurisdiction. . . . -- 

C.C.P. art. 37; presently C.C.P. art. 2.13. 

In performing this duty he may, in 

meeting with resistance in the discharge of any duty imposed upon him 

by law, summon citizens of his county 

to overcome the resistance. . . , 

C.C.P. art. 38; presently C.C.P. art. 2.14. 

p. 4192 
The Honorable Gene Russell - page 2 (H-1016) 

The same statutes respecting the authority to make arrests and execute process 

in criminal cases govern sheriffs and 

state rangers, except that state rangers 

have the power to make arrests in any county -- in the state. . . . A-- 

(Emphasis in original). V.T.C.S. art. 6570; presently V.T.C.S. 

art. 4413(11) (4). 

Article 223, C.C.P., [presently C.C.P. 

art. 15.061, authorizing the execution 

of a warrant of arrest by a sheriff under 

the conditions stated in the article in 

any county in the state, is not deemed to 

have the effect to extend generally the 

jurisdiction of a sheriff beyond the borders of his county. In the absence of a 

warrant of arrest issued under the provisions of article 223, supra, a sheriff as 

such is not authorized to make an arrest 

outside of his county. . . . . 

The following is taken from 2 Ruling 

Case Law. p. 469: "A public officer appointed 

as a conservator of the peace for a particular county or municipality as a general rule 

has no official power to apprehend offenders 

beyond the boundaries of the county or.district for which he has been appointed * l l 

Where the sheriff of a county attempts to 

make an arrest in another county, without a 

warrant, he is usually considered as having 

only the authority which a private person 

may have in apprehending criminals. l l *" 

In the present case, the relation the 

officers bore to the search was that of private citizens. No conditions were present 

which would have authorized a private citizen 

to arrest appellant. 

- Id. at 465. 

P. 4193 
” _. 

The Honorable Gene Russell - page 3 (H-1016) 

We note that every statutory phrase emphasized by the 

Henson court remains essentially intact. While article 4413(U) 

was amended in 1971, it still provides that State Rangers shall 

have the same powers and duties of sheriffs: 

except that they shall have the power and 

be authorized to make arrests and to execute 

all process in criminal cases in any county 

in the State. 

V.T;C.S. art. 4413(11) (4). The implication is that sheriffs 

have narrower territorial jurisdiction. 

In 1967 the legislature enacted article 14.01(b) of the 

Code of Criminal Procedure, which provides: 

A peace officer may arrest an offender 

without a warrant for any offense committed 

in his presence or within his view. 

Article 14;01(a), formerly article 212, C.C.P., contains language parallel to that of article 14.01(b) but is limited to 

offenses classed as felonies and offenses against the public 

peace. Article 212 was referred'to in Henson and the court 

clearly held that outside of an officer-jurisdiction he 

acts as a private person: see also Ward v. Texas, 316 U.S. 

547 (1942); Hooper v. DeisEi,m~ SxZd-?%63ex. Civ. App. 

-- Amarillo 1938, no writ), thus suggesting that language 

such as that contained in article 14:01(a)-or 14.01(b) is 

insufficient to authorize a sheriff to make arrests outside 

his county. 

However, in 1968 the Court of Criminal Appeals suggested 

in dictum that the enactment of article 14.01(b) would authorize a city policeman to make an arrest outside his city. 

Buse v. State, 435 S.W.Zd 530 (Tex. Crim. App. 1968). In 

1973, article 14.01(b) and Buse were cited along with several 

well established exceptionstothe Henson rule to uphold an 

arrest made by a policeman outside FhiTty limits for an 

offense committed inside the city. Green v. State, 490 S.W.Zd 

826 (Tex. Crim. App. 1973). 

-- 

Since the reference was not 

necessary to the court's holding it, too, is considered to 

be dictum. Ex parte Coffee, 328 S.W.Zd 283 (Tex. 1959); 

Ball v. Davis, 18 S.W.Zd 1063 (Tex. 1929); 

153 S.W. 1126 (Tex. 1913): Belote v. State., 

fZ$gY&;*' 

(Tex. Crim. App. 1933). We%ve examined the briefs submitted 

to the Court of Criminal Appeals in both Buse and Green, and 

p. 4194 j 

\ 
The Honorable Gene Russell - page 4 (H-1016) 

the possible application of article 14.01(b) was not urged 

in either instance. Furthermore, article 14.01(b) and Buse 

were cited by the court as merely suggesting the conclusion 

rather than directly supporting it. Harvard Law Review Assoc., 

A Uniform System of Citation 86-87 (11th ed. 1967). 

While it is important to be aware of the dicta in Buse 

and Green and to understand that it is possible that it may 

be a-indication that the court will find that article 14.01(b) 

has overturned the Henson rule, we do not believe that the 

dicta in these two cases can be construed as finally resolving 

the question. Accordingly, until the Court of Criminal Appeals 

makes a more direct ruling on the question, we believe we must 

advise you that the sheriff of one county probably has no 

general authority to make arrests in another county. 

You also ask if a sheriff can make an arrest 400 yards 

beyond the county line under the authority of article 13.04 

of the Code of Criminal Procedure. Article 13.04, which 

indicates that an offense committed within 400 yards of a 

county line may be prosecuted in either county, does not 

authorize a peace officer to make arrests in the 400 yard 

zone in another county. See Ledbetter v. State, 5 S.W. 226 

(Tex. Ct. App. 1887). -.- 

SUMMARY 

A sheriff should not make arrests outside 

his county for offenses committed outside 

his county except as he is authorized to 

do so as a private person under article 

14.01(a) of the Code of Criminal Procedure 

or where the offense is within an established exception to the Henson doctrine. 

truly yours, 

$tll . 

Attorney General of Texas 

APPROVED: 

P. 4195 

I 
The HonoAble Gene Russell - page 5 (H-1016) 

C. ROBERT HEATH, Chairman 

Opinion Committee 

km1 

P. 4196